The Supreme Court's War on the Great Society

AP Images/Yoichi Okamoto

The Voting Rights Act of 1965 (VRA) is arguably the most important and successful civil rights legislation passed by the United States Congress. Today, without remotely adequate justification, a bare majority of the Supreme Court cut the heart out of the centerpiece of the Great Society. That this outcome was expected doesn't make it any less outrageous.

The key issue in Shelby County v. Holder is the "preclearance" provisions of the Voting Rights Act. Section 4 of the VRA "covers" numerous jurisdictions—predominantly but not exclusively Southern—with a history of vote discrimination and Section 5 of the VRA requires the covered jurisdictions to get approval from the federal government before changing their voting laws. We should start with the explicit constitutional authority for this legislation. The majority opinion asserts that "the Framers of the Constitution intended the States to keep for themselves, as provided in the Tenth Amendment, the power to regulate elections." The problem, of course, is that the balance the framers and ratifiers of the Constitution of 1787 and 1789 established between the federal government and the states in supervising voting has been rendered obsolete by the Civil War Amendments. Section 2 of the 15th Amendment states that "[t]he Congress shall have power to enforce [the 15th Amendment's prohibition of racial discrimination in voting] by appropriate legislation." There is no question about Congress's authority to prohibit racial discrimination in voting. Legislation directed to this end does not interfere with any state "sovereignty" protected by the Constitution, and Congress should be given broad discretion to act.

Nevertheless, Chief Justice Roberts (speaking for the Court's four other Republican appointees) held a crucial provision of the VRA unconstitutional. The majority did not strike down Section 5, but it did strike down Section 4—in other words, maintaining the "preclearance" provision but as of now not applying it to any states. According to Roberts, times have changed, and therefore Congress's authority has changed as well. (Remarkably, Section II A of Roberts's opinion, laying out a theory of state sovereignty on voting that justifies his palpable disrespect for Congress, does not mention the 15th Amendment at all.) "Congress," the majority says, "did not use the record it compiled to shape a coverage formula grounded in current conditions. It instead reenacted a formula based on 40-year-old facts having no logical relation to the present day." If Congress does not continually update Section 4, it cannot apply the preclearance provision, because patterns of discrimination have changed.

The problems with this argument are manifest. As Ruth Bader Ginsburg argues in the latest of her brilliant dissents, the Court perversely uses the success of the Voting Rights Act as an argument against it. As she observes, "throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet." The extensive history of states creatively nullifying the 15th Amendment provided a strong justification for preclearance, and the effectiveness of the provision shows that Congress was justified. To the majority, this very effectiveness makes the legislation "inappropriate." To restate this argument is to refute it. Section 4 may not represent the states that Chief Justice Roberts believes should be covered by it and it would not represent my list either, but this isn't the issue. To be constitutional, legislation enforcing the 15th Amendment needn't be "ideal," it need only be "appropriate." Section 4 continues to pass this test easily, and there is no legitimate warrant for the Supreme Court to usurp the authority of Congress in this case.

In contrast to Justice Thomas's openly radical concurrence—he argues that Section 5 is unconstitutional—the Chief Justice's opinion is cloaked in apparent modesty. "Congress," the majority generously concedes, "may draft another formula based on current conditions." But, as Justice Scalia has previously written about Roberts's superficially "minimalist" opinions, "this faux judicial restraint is judicial obfuscation." Forcing Congress to start from scratch makes it enormously difficult for Congress to pass a modified Section 4; the basic institutional realities of the American institutional framework make inertia the most powerful force. Once a legislative coalition has been torn apart, it cannot be easily reassembled. The Supreme Court isn't acting as a mere neutral arbiter here; it's putting an anvil on the scale tilting toward Republican opponents of voting rights.

And, secondly, beware the bait-and-switch. Even in the unlikely event that Congress can pass a new version of Section 4, it will be enormously difficult to meet the arbitrary standards that a Supreme Court consistently hostile to federal intervention to protect basic rights has laid out. If a new Section 4 covers too few jurisdictions, it can be held to illegally discriminate against some states (as the Court did today.) If Congress creates a national preclearance requirement, however, it is virtually certain that the Republican-appointed majority of the Court would hold that this remedy was not "congruent and proportional," as it held when Congress tried to protect victims of gender-based violence under its authority to enforce the 14th Amendment. It is nearly impossible to satisfy the demands of a Court that takes equality between the states much more seriously than the equal rights of American citizens.

Roberts's seemingly modest opinion, therefore, is anything but. The odds that a new Section 4 can pass both houses of Congress and be the Goldilocks statute that will cover neither too many nor too few states to satisfy the Roberts Court's inscrutable but consistently anti-Congress whims are roughly equivalent to the odds that Nancy Pelosi will be the Republican candidate for president in 2016. The effect of the majority's opinion will likely be to quietly accomplish what Thomas's inconveniently candid holding that Section 5 is unconstitutional would prefer to do directly.

It is simply not the role of the Court to arbitrarily micromanage an area of clear congressional authority this way. Justice Ginsburg powerfully points out the appropriate stance that should be taken toward Congress in this case:

After exhaustive evidence-gathering and deliberative process, Congress reauthorized the VRA, including the coverage provision, with overwhelming bipartisan support. It was the judgment of Congress that “40 years has not been a sufficient amount of time to eliminate the vestiges of discrimination following nearly 100 years of disregard for the dictates of the 15th amendment and to ensure that the right of all citizens to vote is protected as guaranteed by the Constitution.” That determination of the body empowered to enforce the Civil War Amendments “by appropriate legislation” merits this Court’s utmost respect. In my judgment, the Court errs egregiously by overriding Congress’ decision.

There is a long and ignoble American tradition of using vague invocations of "states' rights" to trump real, fundamental human rights. The Roberts Court's inept intervention into an area of clear congressional authority on the grounds that a valid statute passed by Congress has been too successful at preventing discrimination is very much in that tradition. Congress should do what it can to respond to this seizure of its proper authority, although it will probably take a change not only in the partisan control of the House of Representative but a change in personnel of the Court to successfully restore the Voting Rights Act.

Comments

Sir:
Following the logic of your article, wrongs committed in the past must be carefully scrutinized in perpetuity – whether there appears to be a change in behavior or not. Interesting notion. By this logic we would have to be administering regular random drug tests to our president; since he once was a drug user – ignoring his behavior since that time. Don’t think this “logic” passes muster.
Have a great day.

What an incredibly poor analogy. Regular random drug tests are indeed administered to lots of people who have been ensnared in our criminal justice system, and if they fail the tests, they don't get to opt out because those who haven't been convicted don't have to take them. Part of what Congress did prior to reauthorization of VRA was to administer a "drug test" to those pre-clearance areas. They entered exhaustive studies and sets of facts into the record that examined whether or not these areas were "clean". They weren't. Congress subsequently reauthorized these sections of VRA overwhelmingly. Only a "counselor" who didn't give a shit about whether or not their "patient" was on drugs could review that work and decide the tests were actually given in error.

These 5 justices are just that kind of counselor, they really aren't concerned whether states put in hurdles to voting that disproportionately impact minority groups. Only Thomas has the balls to actually be straightforward about it.

Thanks -- you are correct, everyone gets randomly tested. The analogy should have been: "Since he was a drug user, he has to test every day when he shows up for work -- regardless of how his behavior has changed since the controls were put in place."

What an incredibly poor understanding of an analogy. Your position (and that of the Obama admin) is - under the terms of your "explanation" is that because your grandfather took drugs, you have to be tested daily. No wait, that does not encapsulate it in its entirety. It would better be stated as, because you live in an area where someone's grandfather used drugs (even if you have no relationship with that person's grandfather and even moved to the area last week) you must be tested.

Only a counselor who does not give a shit about their patient would subject them to a constant infringement of their rights.

Cheers. Indeed I must not understand the word (analogy: similarity between like features of two things, on which a comparison may be based; similarity in some respects between things that are otherwise dissimilar; a comparison based on such similarity; etc.). The situation described in the article was one where a punishment was doled out based on current information. The punishment continued after the situation changed. The apparently inept analogy posited a punishment being doled out years after the infraction occurred. If these situations were diagramed, they would look almost identical. Not sure what else an analogy could do. Have a great day!

Tommy,
You completely miss the point. The VRA is not intended as a punishment to certain states and counties. Instead it is an effort through the 15th Amendment to protect the voting rights of folks who, as a matter of historical fact, where hindered in their attempts to vote.

Think about it. What punishment was meted out to individuals? to living breathing people?

None.

Greetings. I see your point. The intent was noble, not punishment. But I will ask you to consider that the effort to“protect the voting rights of folks,” while not punishment per se, has a similar impact. Prior to the states bad behavior they had the freedom to make changes in their states. Afterwards they lost that freedom. I equated that loss of freedom as a form of punishment (erroneously?); just as I would view any legislated or court-ordered loss of my personal freedoms due to my bad behavior as punishment. Thoughts?

States are not persons (though since corporations apparently are, maybe this was one line of reasoning taken by the justices). States are legal entities, and changing their rules to protect actual persons punishes no one except in the exact same sense that restricting the states' ability to reinstitute slavery by majority vote punishes them. If you have a problem with the federal government eliminating slavery because hey, that punishes "state entities", which is just like punishing "person entities", argue away. Don't expect much sympathy.

Congrats, you win the stupid award for the day.
States have been continuously changing voting rules to disenfranchise minority voters. The attempts of the GOP hasn't changed in the last 30 years. I guess that's why, when it came up for renewal 6 years ago, the Senate voted 98-0. And, even your sainted Bush Jr. said it was a great thing to do.
Yeah, that was before the f*cking nut jobs were voted in.

"States have been continuously changing voting rules to disenfranchise minority voters." An example or three could help ignorant folks be less so. Broad brush opinions and insults do little to assist the uninformed.

Tommy,
You have to be willfully hiding from Republican voter suppression if you need this but here goes.

Follow the links at this post:
http://www.esquire.com/archives/blogs/politics/10;2

What's actually unconstitutional is the SCOTUS's power to nullify laws by declaring them unconstitutional. Contrary to liberal myth this power has been used far more to protect the powerful than the powerless.

See Packing The Court by James MacGregor Burns to learn what a Democratic president and Democratic party with balls would do in response to today's outrageous usurpation of power.

It's not as bad as it looks.
One of my assignments as 1L summer intern for the Massachusetts Attorney General was to analyze the Voting Rights Act. A jurisdiction could be required to submit for preclearance all proposed changes in voting if it met either of the following criteria: 1. it demonstrated by certain considerations discrimination in voting laws, or 2. it is one of a few enumerated states, essentially a state that had been part of the Confederacy. Parts of Massachusetts satisfied the first criterion.
This decision does not seem to touch the first criterion. If it stands, states that satisfy the second criterion could still be found to satisfy the first criterion. It still has the opportunity to challenge this determination.

The so-called "Great Society" programmes were and are wastes of money of an astonishing magnitude, and exercise in abuses of usurped power by the federal government.

Yeah, guaranteeing people the right to vote cost money and --further -- allowed people to vote. That was outrageous

HenryMiller,
VRA is clearly an legitimate exercise by Congress of the 15th Amendment.

By the way, on this side of the Atlantic we write 'program'.

This is a great example of how bad things can be in such a large Federation, much like it happens in Brazil’s fragile democracy, .

The author of this article is having a conniption fit cause Section 4 of the VRA was overturned. He does not give credit to the fact that it is using data that is almost as old as me to enforce something that was meant to be temporary to begin with. He sees racists under every rock and in every nook and cranny of this country. I hate to get his fantasy all wet but racial intolerance ain't what it use to be. Even the KKK is not viewed that favorably anymore in the South. They have lost their punch with the common people down here. Yes, I am a Southerner, so I know of what I write.:) You see mixed marriages all the time down here. Something back in the 60's that would get you hanged from the nearest tree. So the times have changed and so has the people's atitudes regarding race. The Progressives need to get a grip and deal with the fact that it ain't 1965 anymore.:)

Who was it that emphasized the fact the elections have consequences?

"Congress shall have power to enforce [the 15th Amendment's prohibition of racial discrimination in voting] by appropriate legislation"

SCOTUS did not rule against Congress' power to enforce - it ruled that the current law of enforcement is no longer appropriate (unconstitutional because discriminating between localities based on egregiously out-of-date data).

States' authority to regulate elections is intact; Congress' authority to enforce non-discrimination in States' regulations is intact.

Scott obviously submitted this in haste and anger since it has more holes in it than Albert Hall. The ad hominem attacks are also a weakness in any argument.

"As [Justice Ginsburg] observes, "throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet."

This proposition that effectiveness is an adequate justification for unconstitutional expansion of federal power is exactly the same one being used to justify the unprecedented violation of our right to privacy by the NSA. Inspecting our homes on a weekly basis would no doubt render the majority of law-abiding citizens safer from crime but none would countenance an attempt to justification such intrusions based on their effectiveness.

I wonder if the author would find the VRA unconstitutional had been extended in perpetuity. No? How about for 100 years? No? Clearly at some point using past history as justification for current abrogation of State Sovereignty crosses the Constitutional boundary. Congress should gets off its duff and enact legislation with a rational formula that directly addresses the problem Ginsburg refers to ("2nd generation discriminatory methods") which would under any rational-means test apply equally to Ohio as to Alabama. (Guess which state has the highest gap between white and black voter turn-out. That's correct, Massachusetts).

We knew this gang of 5 did not respect the law when they ignored Florida state law and selected the President of their political ideology. It has gone downhill since then. Citizen's United gave a boost to corruption of the political system. Today we can see what the 6 southern states could not get past the DOJ go into law. It gerrymanders further which has been a key to success. Surely we can do better than having some voters of color stand in line 7 hours to vote next to white Republican districts where it is in and out. Jim Crow id laws are made up to fit the person and often cost money. All the red states are in open rebellion to the federal government. The problem for the old white guys is that they have attacked everyone but themselves. Their days of total power are numbered although the end of their rule can not come soon enough.

Looking throughout the history of the United States, to this very day, whenever you hear the term "states rights" you can rest assured that injustice is being done. It was the argument used to support slavery, it was the argument used to support Jim Crow and segregation, and today it is the argument used to justify attacking the rights and welfare of our citizens.

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